1

The district court applied the sentencing guidelines

effective November 1, 1990. Generally a sentencing court should

apply the guidelines in effect at the time of sentencing. 18

U.S.C. § 3553(a)(4); United States v. Lance, 23 F.3d 343, 344

(11th Cir.1994). Thus, under the general rule, the November 1993

guidelines would have been applicable because Aduwo was sentenced

in February of 1994. However if, under the guidelines in effect

at sentencing, application of a post-offense amendment to the

guidelines would substantially disadvantage the defendant, the

sentencing court should apply the guidelines in effect at the

United States Court of Appeals,

Eleventh Circuit.

No. 94-8197.

UNITED STATES of America, Plaintiff-Appellee,

v.

Dorcas Abike ADUWO, aka Joyce Omolakake Taiwo, aka Joyce Tawuo,

aka Joyce Labeke Atilade, Defendant-Appellant.

Sept. 19, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:93-CR-47), J. Owen Forrester, Judge.

Before ANDERSON and BIRCH, Circuit Judges, and JOHNSON, Senior

Circuit Judge.

ANDERSON, Circuit Judge:

 Dorcas Abike Aduwo pled guilty to two counts of making false

statements in the acquisition of firearms, 18 U.S.C. § 922(a)(6),

and one count of possession of firearms by a convicted felon, 18

U.S.C. §§ 922(g) and 924(a), in connection with two purchases of

9mm handguns. Because Aduwo later participated in an attempted

armed robbery in which one of these guns was used, the sentencing

judge applied the cross-reference provision of U.S.S.G. § 2K2.1

(Unlawful Receipt, Possession, or Transportation of Firearms or

Ammunition), § 2K2.1(c) (Nov.1990), and sentenced Aduwo under

U.S.S.G. § 2B3.1 (Robbery) (Nov. 1990).1 Aduwo's appeal raises
time of the offense instead. Id. The November 1990 guidelines

were in effect when Aduwo made the illegal firearm purchases. 

Because the parties do not object to the district court's

application of the November 1990 guidelines, we assume without

deciding that this case is governed by the exception rather than

the general rule. 

only one issue; Aduwo argues that the district court incorrectly

applied the § 2K2.1(c) cross-reference provision because Aduwo was

not in possession of a firearm during the attempted armed robbery

for the purpose of § 2K2.1(c). We affirm.

I. FACTS

At the behest of her boyfriend, Romeo Anthony Brown, Aduwo

made two purchases of 9mm handguns. On August 11, 1991, Aduwo

purchased five Glock 9mm handguns and five Taurus 9mm handguns.

Several days later, on August 16, Aduwo purchased nine more Glock

9mm handguns. At each handgun purchase, Aduwo certified on ATF

Form 4473, a firearms transaction record, that she had never been

convicted of a felony. In fact, Aduwo had been convicted of a

felony in 1989.

In January of 1992, Aduwo participated in an attempted "drug

rip-off" with Brown. Brown, Aduwo, and a third conspirator

negotiated a sale of five kilograms of cocaine with undercover

agents. They did not intend to deliver cocaine, but instead

planned to rob the buyers of $115,000 by exchanging a canvas bag

containing telephone books for the money. When the undercover

agents arrested them at the scene of the exchange, Brown was in

possession of one of the 9mm Glocks purchased by Aduwo on August

16, 1991, but Aduwo had no weapon. Aduwo was indicted and

prosecuted for this crime in Georgia state court; in that
proceeding, she pled guilty to criminal attempt to commit armed

robbery and was sentenced to four years imprisonment.

In this proceeding, Aduwo was charged with two counts of

making false statements to acquire firearms, 18 U.S.C. § 922(a)(6),

and two counts of possession of firearms by a convicted felon, 18

U.S.C. §§ 922(g) and 924(a). Aduwo pled guilty to both false

statement counts and one count of possession of a firearm by a

convicted felon. Finding that possession of one of the firearms in

the subsequent attempted armed robbery could be imputed to Aduwo,

the court applied U.S.S.G. § 2K2.1(c), and thus calculated Aduwo's

offense level based upon the robbery guideline, U.S.S.G. § 2B3.1.

Aduwo argues that the district court's application of § 2K2.1(c),

and thus § 2B3.1, was in error because she did not possess a

firearm in connection with the attempted armed robbery.

II. DISCUSSION

 Whether, under these facts, possession of a firearm can be

imputed to Aduwo for the purpose of § 2K2.1(c) is a question of law

which we review de novo. United States v. Huppert, 917 F.2d 507,

510 (11th Cir.1990).

 United States Sentencing Guidelines § 2K2.1 addresses the

unlawful receipt, possession or transportation of firearms.

U.S.S.G. § 2K2.1 (Nov. 1990). Subsections (a) and (b) provide the

general rules for calculating an offense level for such crimes.

However, if the defendant used or possessed the firearm in

connection with the commission or attempted commission of another

offense, § 2K2.1(c) directs the sentencing judge to apply § 2X1.1

if the resulting offense level is greater than that determined
 2

The district court calculated an offense level of 23 under

the robbery guideline. U.S.S.G. § 2B3.1 (Nov. 1990). Aduwo's

base offense level was 20. § 2B3.1(a). The base offense level

was then increased by 3 points because a dangerous weapon was

used in the attempted armed robbery, § 2B3.1(b)(2)(C), and by

another 2 points because the crime involved more than $50,000. §

2B3.1(b)(6)(C). The court then decreased the offense level by 2

for acceptance of responsibility. U.S.S.G. § 3E1.1(a) (Nov.

1990). 

under § 2K2.1(a) and (b). Section 2X1.1 in turn directs the

sentencing court to apply the guideline for the offense that the

defendant committed while in possession of the firearm. § 2X1.1(a)

(Nov. 1990). Thus, a defendant who merely possesses a firearm

illegally will be sentenced under § 2K2.1(a) and (b), but a

defendant who then uses that weapon in another crime may be given

a longer sentence under the guideline applicable to the subsequent

crime instead. In this way the 2K2.1 sentencing scheme permits the

sentencing court to impose a sentence which reflects the magnitude

of the crime. As the Tenth Circuit has observed, "[I]t [is]

obvious that the culpability—and the resultant punishment—of a

person who passively possesses a gun is different than the person

who possesses that same gun but also uses is it [in another

crime]." United States v. Willis, 925 F.2d 359, 361 (10th

Cir.1991).

The district court determined that § 2K1.1 was applicable to

Aduwo's illegal firearm purchases. Because the court found that

Aduwo "possessed" one of the illegally purchased firearms in

connection with the January, 1992, attempted armed robbery, the

court applied § 2X1.1(a) which in turn referred the court to §

2B3.1, the robbery guideline. U.S.S.G. § 2B3.1 (Nov. 1990). Aduwo

was sentenced based upon the resulting offense level of 232 because
 3

The district court calculated an offense level of 10 under

§ 2K2.1(a) and (b). Aduwo's base offense level was 12 because

she had a prior felony conviction. § 2K2.1(a)(2). The court

then decreased Aduwo's offense level by 2 for acceptance of

responsibility. § 3E1.1(a) (Nov. 1990). 

that offense level was greater than the offense level that would

have resulted under § 2K2.1(a) and (b).3

Aduwo argues that the district court should not have applied

the § 2K2.1(c) cross-reference provision because she did not

possess a firearm in connection with the attempted armed robbery.

Aduwo claims that the "rip-off" plan never included the use of

weapons, that she never had physical possession of a weapon during

the attempted robbery, and that she did not know that a firearm was

present during her participation in the crime. The government

contends that Brown's possession of the Glock during the crime may

be imputed to Aduwo as Brown's co-conspirator.

 Whether possession of a firearm by a co-conspirator can be

imputed to a defendant for the purposes of § 2K2.1(c) is a question

of first impression in this Circuit. We have, however, concluded

that a sentencing court may enhance a defendant's sentence based

upon a co-conspirator's possession of a firearm in the similar

context of U.S.S.G. § 2D1.1(b). United States v. Otero, 890 F.2d

366, 367 (11th Cir.1989); see also United States v. Nino, 967 F.2d

1508, 1513-15 (11th Cir.1992), cert. denied, --- U.S. ----, 113

S.Ct. 1432, 122 L.Ed.2d 799 (1993). Under § 2D1.1(b)(1), a

defendant's narcotics trafficking sentence can be enhanced "[i]f a

dangerous weapon (including a firearm) was possessed [during

commission of the offense]." U.S.S.G. § 2D1.1(b)(1) (Nov. 1994).

A defendant who did not physically possess a weapon during a drug
conspiracy may still merit a sentence enhancement for "possession"

of a dangerous weapon under § 2D1.1(b) if a co-conspirator

possessed a dangerous weapon. Otero, 890 F.2d at 367. This

follows from the basic rule that conspirators are liable for the

reasonably foreseeable acts of their co-conspirators in furtherance

of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 66

S.Ct. 1180, 90 L.Ed. 1489 (1946); see also U.S.S.G. §

1B1.3(a)(1)(B) (Nov. 1994) (Relevant conduct for the purpose of

determining specific offense characteristics includes "all

reasonably foreseeable acts and omissions of others in furtherance

of [a] jointly undertaken criminal activity."); United States v.

Martinez, 924 F.2d 209, 210 n. 1 (11th Cir.) (noting Otero's §

2D1.1(b) co-conspirator possession rule tracks Pinkerton and the

Guidelines, which "require[ ] that the firearm possession be

reasonably foreseen as a necessary or natural consequence of the

unlawful agreement"), cert. denied, 502 U.S. 870, 112 S.Ct. 203,

116 L.Ed.2d 163 (1991). We see no reason why the Pinkerton rule of

conspirator liability should not apply equally in the context of §

2K2.1(c).

 Applying the Pinkerton rule to our facts, Brown's possession

of the Glock during the attempted armed robbery may be imputed to

Aduwo. Brown and Aduwo were co-conspirator's in a conspiracy to

effect a "drug rip-off;" Aduwo, Brown, and their co-conspirator

agreed to commit a robbery and, in its attempt, committed overt

acts in furtherance of that crime. See United States v.

Wieschenberg, 604 F.2d 326, 331 (5th Cir.1979) (A conspiracy is an

agreement between two or more persons with an unlawful purpose, and
 4

Whether Aduwo had actual knowledge of Brown's possession of

the Glock is irrelevant to our inquiry. Aduwo's alleged lack of

knowledge notwithstanding, she is liable for Brown's possession

of the Glock if such possession was foreseeable and in

furtherance of the conspiracy. See United States v. Martinez,

924 F.2d 209, 210 (11th Cir.1991) (§ 2D1.1 enhancement sustained

despite defendant's alleged lack of knowledge of co-conspirator's

firearm possession because possession reasonably foreseeable). 

an overt act in furtherance of that purpose.). Therefore, Aduwo is

liable for all acts in furtherance of the "drug rip-off" which are

"reasonably foresee[able] as a necessary or natural consequence of

the unlawful agreement." Pinkerton, 328 U.S. at 648, 66 S.Ct. at

1184.

Although Aduwo claims that she had no idea that Brown would be

carrying the concealed Glock,4 Brown's possession of the weapon

during the attempted robbery was both foreseeable and in

furtherance of the conspiracy. The conspirators planned to "rip

off" people whom they believed were drug purchasers. The quantity

of drugs involved, five kilograms of cocaine, would indicate to the

conspirators that these purchasers were not merely occasional

users, but drug dealers as well. Thus, it was reasonably

foreseeable that one of the conspirators might carry a weapon as

protection against the very real possibility that the purchasers

would discover their deception and retaliate violently. In fact,

Aduwo pled guilty to attempted armed robbery in state court,

thereby acknowledging that the conspirators planned to use some

weapon to effect the "rip off." Moreover, Aduwo had purchased

firearms for Brown, including the particular Glock which he

carried, and thus was well aware that Brown had access to such

weapons. Therefore, because Brown's possession of a concealed
 5

We note that our conclusion is consistent with the result

in United States v. Gonzales, 996 F.2d 88 (5th Cir.1993). 

firearm during the attempted robbery was foreseeable and in

furtherance of the "drug rip-off," Brown's possession of the Glock

may be imputed to Aduwo.

III. CONCLUSION5

The district court did not err in determining that Aduwo

possessed one of the 9mm firearms in connection with the commission

of the subsequent attempted armed robbery for the purpose of the §

2K2.1(c) cross-reference provision. Therefore, Aduwo's sentence is

AFFIRMED.